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Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address in the chamber of the US House of Representatives at the US Capitol Building on February 5, 2019, in Washington, DC. | Doug Mills-Pool/Getty Images

The Supreme Court could gut the constitutional right to an abortion, and all it has to do is sit on its hands.

The constitutional right to an abortion is almost certainly coming to an end — the only question is how long the Supreme Court’s new majority will take to kill it off. It’s not likely to be very long. On Monday, the Supreme Court will meet to decide whether to hear a case that could leave little, if any, of this right standing.

For years, Justice Anthony Kennedy held the balance on a Supreme Court divided between four staunch opponents of this right and four supporters.

His replacement, Justice Brett Kavanaugh, looks ready to change that. Just months after joining the Court, Kavanaugh wrote an opinion seeking to shrink abortion rights.

Nor is Chief Justice John Roberts, the closest thing this Court has to a swing vote, likely to vote in favor of abortion rights out of respect for precedent. In 2007’s Gonzales v. Carhart, decided less than two years after Roberts joined the Supreme Court, Roberts voted to uphold a ban on so-called “partial birth abortions” that was very similar to a law the Supreme Court struck down just seven years earlier. The salient difference between Gonzales and the earlier case, Stenberg v. Carhart, wasn’t any difference between the two laws. It was the fact that the Court’s personnel had changed, and the new majority with Roberts as chief justice was far less protective of the right to an abortion.

Litigators on both sides of the abortion debate, in other words, are now experiencing deja vu except that the Court’s current majority is even more hostile to abortion rights than the one that decided Gonzales. The salient question today is not if the Supreme Court will gut what remains of its pro-abortion decision in Roe v. Wade. It is almost definitely when.

The decision undercutting abortion rights could come as soon as next week, though it is more likely that the Court will wait until next June, when they typically hand down their highest-profile decisions, to come for Roe. But make no mistake, when the justices meet Monday for their first conference of the next term, the continued vitality of the abortion right is very much on the line.

Why Roe is on the line

Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.

One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.

To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”

Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.

Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.

In theory, an admitting-privileges requirement might make abortions safer by allowing women to be admitted to a hospital more quickly if they experience complications. But numerous studies cited in Whole Woman’s Health found that such complications are so rare — occurring in “less than one-quarter of 1%” of first-trimester abortions — that it was far from clear why a state should impose such a burdensome requirement on abortion providers when that requirement could only be relevant to a tiny fraction of patients.

Indeed, a major reason why abortion providers struggle to obtain admitting privileges is because complications are so rare. “Hospitals often condition admitting privileges on reaching a certain number of admissions per year,” according to a brief filed by an organization representing hospital physicians, but abortion complications are so unusual that the doctors who provide such abortions are unlikely to meet their quota.

As Whole Woman’s Health explains, “doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”

Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.

That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”

Moreover, the majority’s factual claims were not just highly contested, they were at odds with the factual conclusions of the trial judge who heard this case. As a general rule, appellate judges are supposed to defer to trial judge’s findings of fact unless they are “clearly erroneous.” But the majority, according to Higginbotham, did not do so. “I had not thought that abortion cases were an exception to the coda that appellate judges are not the triers of fact,” he wrote, warning that “it is apparent that when abortion comes on stage it shadows the role of settled judicial rules.”

Should the Supreme Court allow the Fifth Circuit’s decision in Gee to stand, in other words, it would send a clear message to anti-abortion judges throughout the country. It would tell those judges that they are free to ignore the Supreme Court’s abortion decisions or to violate the ordinary rules that govern nearly all litigation in order to protect laws restricting abortion.

Indeed, the Fifth Circuit’s defiance of the Supreme Court appeared to be too much even for the conservative Chief Justice John Roberts. Last February, Roberts surprised many court-watchers by crossing over to vote with his liberal colleagues and temporarily stay the Fifth Circuit’s decision.

It’s unlikely that Roberts, who joined the dissent in Whole Woman’s Health, suddenly had a change of heart about abortion rights. Rather, the most likely message Roberts intended to send to the Fifth Circuit was more territorial — ”You don’t get to overrule Roe v. Wade. Only I get to overrule Roe v. Wade.”

Three ways the Supreme Court could resolve this case

The stay expires automatically upon the Supreme Court’s final disposition of Gee. That is why so much is at stake at Monday’s conference.

In theory, the Court could decide that it is so troubled by the Fifth Circuit’s defiance of Whole Woman’s Health that it reverses the appeals court without additional briefing or oral argument — a process known as “summary reversal.” Anyone who bets on this outcome should expect to walk away empty-handed.

A somewhat more likely outcome is that the Court could decide not to hear the case at all. If it did that and let the Fifth Circuit’s opinion stand, the stay lifts and Louisiana’s anti-abortion law will take effect.

Should that happen, other judges will believe that they are free to follow the Fifth Circuit’s lead — that is, to uphold anti-abortion laws even if those laws are nearly identical to laws the Supreme Court already struck down. Cases like Roe and Whole Woman’s Health will remain on the books in some zombie form, but they will be treated as optional.

Such a decision, moreover, would come at a time when Republican dominance of the federal bench is increasing. The Fifth Circuit, which oversees Mississippi, Louisiana, and Texas, already showed that it is eager to uphold anti-abortion laws. Republicans have solid majorities on the Sixth, Seventh, and Eighth Circuits, which combined oversee a vast swath of the country that includes the Midwest and much of the South and the Great Plains states. And once Trump fills two vacancies on the Eleventh Circuit, which oversees Alabama, Florida, and Georgia, Republicans will gain a majority there as well.

Most of the states that are likely to enact anti-abortion laws, in other words, are overseen by conservative appeals courts. So if the Supreme Court gives those courts a permission slip to ignore cases like Whole Woman’s Health, the right to an abortion could effectively cease to exist in those states.

All of that said, it is much more likely that the Supreme Court will agree to hear the Gee case. The four most conservative justices may want to take the case so they can cut back on abortion rights in a formal legal opinion. And the four most liberal justices may want to take it just so they can extend Roe’s viability for a few more months before its seemingly inevitable demise. And it only takes four votes in total to place a case on the Court’s argument calendar.

So the Court will probably hear the Gee case, and the decision will likely come down next June, the month when the Court ordinarily hands down its most contentious opinions.

Assuming that there are five votes to uphold the Louisiana law — and there almost certainly will be — there is some doubt about what the opinion will say. It may overrule Roe outright, thus ending the era of constitutional abortion rights in one fell swoop.

Alternatively, the Court could leave some shell of Roe in place while also making it clear that at least some so-called TRAP laws are now permissible. Louisiana won’t be able to ban abortions outright but they will be able to require abortion providers to obtain pointless credentials. They might also be able to require clinics to build expensive facilities that serve no medical purpose.

If this last scenario plays out, the future of abortion rights is not likely to look very different from what it would if the Court overrules Roe outright. As a practical matter, there isn’t much difference between a clinic that shuts down because abortion is illegal and a clinic that shuts down because there are no longer any doctors who can gain the credential they need to perform an abortion.

In states led by anti-abortion lawmakers, in other words, some of the better-funded clinics will likely try to remain open, building more and more expensive facilities and running their doctors through more and more elaborate obstacle courses just to obtain the credential that doctor needs to perform abortions. But once the Supreme Court opens the floodgates to laws whose real purpose is to drive up the cost of operating an abortion clinic, even the wealthiest clinics will be caught in a vice.

Eventually, the costs will be so high that no one can afford to operate a clinic. And that will be the end of the constitutional right to an abortion. When it all sorts out, abortion will likely remain available in blue states. But the rule that every pregnant person has the right to terminate their pregnancy will fade into memory.

Author: Ian Millhiser

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